P.J. Robinson Pty Ltd v Adam Cook

Local Court of New South Wales

CITATION:	P.J. Robinson Pty Ltd v Adam Cook [2007] NSWLC 10
JURISDICTION:	Civil
PARTIES:	P.J. Robinson Pty Ltd Adam Cook
FILE NUMBER:	636/07
PLACE OF HEARING:	Downing Centre Local Court
DATE OF DECISION:	06/15/2007
MAGISTRATE:	Magsitrate B A Lulham
CATCHWORDS:	Practice - application for change of venue - appropriate court - consideration of balance of convenience
LEGISLATION CITED:	Uniform Civil Procedure Act Uniform Civil Procedure Rules
CASES CITED:	Wentworth v Graham [2002] 55 NSWLR 638 Westpac Banking Corporation v Abemond Pty Limited (Supreme Court, 28th October 1994 unreported) Fung v Stocovaz (2006) NSWSC 1345
REPRESENTATION:	Advocate for Defendant/Applicant: Mr M.P. Board (Solicitor) Solicitors for Defendant/Applicant: C.K.B. Partners Counsel for Plaintiff/Respondent: Mr Warburton Solicitors for Plaint/Respondent: Mason Black
ORDERS:	Applicant's motion dismissed

BACKGROUND TO DISPUTE

1    P.J. Robinson Pty Ltd (the applicant) sued the defendant to recover the cost of the repairs and towing expenses for its motor vehicle arising out of a collision which occurred at Bondi. It alleged Adam Cook (the respondent) was the driver at fault in the accident. The respondent filed a Defence admitting fault in the accident, but denying that the amount claimed for the repairs and towing expenses was reasonable. The applicant commenced the proceedings in the Downing Centre. The respondent filed a Motion seeking to have the hearing transferred to the Kogarah Local Court. The Motion was determined by a Registrar in Chambers who ordered the proceedings to remain at the Downing Centre. The applicant filed a Motion seeking a review of the Registrar’s decision.

THE NATURE OF THE REVIEW

2    The Motion for review was filed pursuant to r 49.19 of the Uniform Civil Procedure Rules (UCPR) which provides as follows:

R49.19 If a Registrar gives a direction or makes an order or does any other act in any proceedings, the court may, on application by any party, review the direction order or act and make such order by way on confirmation, variation, discharge or otherwise as the court thinks fit.’

3 There is considerable debate as to the nature of the review and as to whether it is a review or an appeal. The difficulty is exemplified by r 49.20 which in sub-section 1 provides that an application for review of a decision of a Registrar is to be instituted by a Notice of Motion. Sub-section 2 provides that the appeal must be instituted within 28 days after the material date. The dispute is discussed to in detail in Ritchies Practice at paragraph 49.19.5. I note that UCPR r 49.23 expressly contemplates further evidence being adduced on the review. The learned authors summarised the position as follows:

‘ For all of these reasons, as well as the more general considerations required by s 56 to s 58 of the Civil Procedure Act, it should not be assumed that the court would be prepared to treat an application for review as involving a complete hearing de novo. The fact of the Registrar’s decision, especially when it relates…